COURT OF APPEALS OF, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71357, 71358, 71359, 71360 IN THE MATTER OF: : : DANIELLE LEVERETT [71357] : JOURNAL ENTRY DEBRA LEVERETT [71358] : BRYANT LEE [71359] : AND BRADFORD LEE [71360] : : OPINION : Date of Announcement of Decision: MARCH 26, 1998 Character of Proceeding: Civil appeals from Court of Common Pleas Juvenile Court Division Case Nos. 9590498, 9590499, 9590500, 9590501 Judgment: AFFIRMED Date of Journalization: Appearances: For Appellee Dept. For Appellant Nancy Leverett: of Children and and Family Services: JAMES A. DRAPER Cuyahoga County Public Defender LYNNE STEWART, ESQ. SCOTT ROGER HURLEY, Asst. 3955 Euclid Avenue Public Defender Cleveland, Ohio 44115 100 Lakeside Place 1200 West Third St., N.W. Guardian Ad Litem: Cleveland, Ohio 44113 PATRICK P. LENEGHAN, ESQ. 9500 Maywood Avenue Cleveland, Ohio 44102 JAMES M. PORTER, P.J.: -2- Appellant Nancy Leverett appeals from the order of the Juvenile Court granting permanent custody of her four children to the appellee Department of Children and Family Services ( Family Services ). Appellant claims that the trial court erred because there was not clear and convincing evidence establishing the mother had a chronic mental illness and there were relatives capable of holding legal custody of the children. We find no error and affirm. Nancy Leverett's four children, who were ages nine months to six years old at the time, were removed from the mother's care on December 30, 1993, after the children were found dirty and alone by Cleveland Police in a filthy, roach-infested home. There was no food in the home. Family Services filed a complaint in Juvenile Court on January 7, 1994, alleging the children were neglected and moved for pre-adjudicatory temporary custody, also known as emergency custody, of the four children. The children were placed in the emergency custody of Family Services on January 14, 1994. On March 24, 1994, the children were adjudicated neglected and were placed in the temporary care and custody of Family Services. The children were placed in foster care. On January 21, 1994, Danielle and Debra Leverett (ages 7 and 5 respectively) were placed in the home of Mr. and Mrs. Gregory Brown, maternal cousins. The boys, Bradford and Bryant Lee (ages 2 and 11 months, respectively), were placed on February 1, 1994 in the home of Mr. and Mrs. Michael Green, also maternal cousins. To this date, the children remain in these placements. -3- During the first year that the children were in placement, the mother's case plan included a drug and alcohol assessment and parenting classes so that she could learn appropriate parenting skills and discipline. In addition, the mother was to obtain appropriate housing and a psychological assessment. The mother did complete a parenting program, but the program representative could not state the mother had learned any parenting skills. The mother was then referred to the FIT program where she had a psychological assessment and counseling. The mother also participated in their parenting class. Again, she was unable to demonstrate the parenting skills that were being taught. She did complete a drug and alcohol assessment and was determined not to be in need of treatment. The mother had secured improved housing, but she personally needed some improvement. Family Service's temporary custody of the children expired by operation of law, and on January 23, 1995, the Agency filed another complaint alleging the children were dependent and neglected. Family Services received emergency custody of the children on February 7, 1995. After numerous continuances, the children were adjudicated neglected and dependent on August 16, 1995 and the children were placed in the temporary custody of Family Services. At this time the case plan in which Ms. Leverett was to obtain counseling and attend parenting education classes was approved. The case plan then expired by operation of law and the Agency filed a new complaint alleging the children were neglected and dependent. The complaint alleged that the mother had involved -4- herself in rehabilitative services, but the services had not improved her parenting skills and had not assisted her in recognizing the reasons the children were removed from her care; that the mother visited regularly, but often terminated the visits early and did not take advantage of extended visitations when offered; the mother was overwhelmed at visits and did not interact with the children appropriately; and that all the children had behavior problems and were in need of a consistent and stable caretaker. (Complaint filed Jan. 23, 1995 at 2-5). The parents stipulated to this complaint, the children were adjudicated neglected and were again placed in temporary custody. Another case plan was approved which included parenting education at the Early Intervention Center (EIC). When it became apparent the mother was not benefitting from a third parenting program and it was not in the best interest of the children to reunite them with the mother, Family Services filed a motion to modify temporary custody to permanent custody. On March 21, 1996, when the motion for permanent custody was filed, the children had been in foster care for two years and three months. A hearing on the permanent custody motion was held on July 30, 1996. Findings of Fact and Conclusions of Law were submitted to the court by the parties on August 21, 1996. On September 18, 1996, the court granted Family Service's motion and the four children were committed to its permanent custody. It is from this order that a timely appeal ensued. -5- Testimony presented at the permanent custody hearing was as follows. Dr. Konieczny, a psychologist for the court clinic, evaluated the mother, Nancy Leverett. His findings were that the mother was motivated and sincere, but intellectually limited; she showed a questionable degree of judgment; he called the mother's diagnosis a personality disorder, not otherwise specified; she has a very pervasive and enduring personality style that interferes with her daily social or occupational functioning; her personality disorder prevents her from independently parenting any or all of these children; the mother would need somebody with her, assisting her twenty-four hours a day to handle the children; and there was nothing further to be done that could prepare the mother for parenting. Dr. Konieczny testified that he had some concerns if the mother were to retain certain parental rights. This concern was based on her behavior at his clinic and at the Department of Children and Family Services. She demonstrated a lack of understanding as to the issues regarding her children and was unable to respond to their needs. He also stated that in his opinion she would not be able to abide with a visitation schedule regarding the children and that unless all ties were broken off with her she would seek to interrupt any provisions ordered regarding the children. He concluded, with reasonable scientific certainty, that Ms. Leverett is not capable of providing adequate independent parenting to her children and that consequently it -6- would not be in the children's best interest for reunification to be pursued. The mother was involved in the Early Intervention Center where Pam Strickland was her case manager. Ms. Strickland testified that it typically takes eight or nine months to complete the EIC Program; that the mother had been involved in the EIC Program for one and a half years, but was not even half way through the program; she could not say that if the mother completed the program she still could parent on her own; it was a challenge to get the mother to meet the goals consistently; there were concerns about the mother's ability to parent the children on her own; the mother seemed confused and had some trouble remembering what has just happened; that she has concerns relative to the mother's ability to see the large picture with the children; the mother could not parent these children without support; and that somebody would have to be there with her, in the home, a good deal of the time. She also stated that the boys are speech and developmentally delayed. Sally Bingham had been counseling Danielle and Debra for two years on a weekly basis. She stated that both girls are special needs children who had behavioral and developmental delays. She said both girls voiced a strong opposition to reunification with their mother as they feared further abuse and neglect. She testified that the mother had called her on a number of occasions to attend the therapy sessions. The mother wanted to know what the children were discussing in therapy, but she did not inquire into the children's progress nor what she could do to help her children. -7- The social worker supervisor, Renee Ristow, testified to Family Service's involvement and experience with the Leverett family. It had been providing services to the mother since October 1993 when the children were removed from the mother's home due to the deplorable condition of the home and the mother's drug and alcohol use. She testified that Family Services has not seen the mother progress in her ability to learn or be able to demonstrate the skills that were being taught to her in any significant way; that the visits with the mother were chaotic and Ms. Leverett had a difficult time managing all the children without a lot of redirection and intervention by staff; that visits with the girls were terminated in October 1995 because of the mother's escalating aggressive behavior; another supervised visit with the girls was tried in June 1996, right before the permanent custody trial, at a Pizza Hut restaurant; this visit ended with the mother locking herself in the bathroom with Danielle who became very upset. Rene Ristow also testified that the mother cannot parent even one child on her own without consistent support, intervention and redirection by a third party; the mother does not understand the needs of the children, which is due, in part, to her poor relationships with the foster-care cousins; she does not want to hear and has difficulty soliciting information; the mother also interfered with the police investigation of the sexual abuse of the children; her constant questioning of the children and prompting the children prevented the police from coming to any kind of conclusion; Family Services and EIC have tried to help the mother -8- improve her relationship with her relatives to no avail; and Ms. Leverett has not used family support in any positive way. Ms. Ristow did not know of any services in addition to those that have been provided to assist the mother in reunifying with her children. The children have been with the relatives since January 1994 and the relatives are willing to adopt the children. Based on this evidence, the trial court granted permanent custody of the four children to Family Services and stated as follows: Children have been in agency custody for approximately two years. Mother is unable to provide an adequate permanent home for the children in the foreseeable future due to the parent's chronic mental illness. Children have no relationship with their fathers. (Journal Entry, dated Sept. 20, 1996). This timely appeal ensued. We will address appellant's assignments of error in the order presented. I. APPELLANT WAS DENIED DUE PROCESS OF LAW, GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WHEN THE TRIAL (SIC) GRANTED PERMANENT CUSTODY OF APPELLANT'S CHILDREN TO APPELLEE DUE TO APPELLANT'S CHRONIC MENTAL ILLNESS WHEN NO SUCH EVIDENCE WAS PRESENTED AT THE PERMANENT CUSTODY HEARING. R.C. 2151.414 which governs permanent custody upon motion by a public children services agency states in pertinent part, as follows: (B) The court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for -9- permanent custody and that any of the following apply: (1) The child is not abandoned or orphaned and the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents; (2) The child is abandoned and the parents cannot be located; (3) The child is orphaned and there are no relatives of the child who are able to take permanent custody. (C) In making the determination required by this section or division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child. *** * * * If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents. (1) Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental -10- conduct to allow them to resume and maintain parental duties. (2) The severe and chronic mental illness, severe and chronic emotional illness, severe mental retardation, severe physical disability, or chemical dependency of the parent makes the parent unable to provide an adequate permanent home for the child at the present time and in the foreseeable future; *** Clear and convincing evidence as required by this statute is defined as that measure or degree of proof which is more than a mere `preponderance of evidence' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. In re Awkal (1994), 95 Ohio App.3d 309, citing Lansdowne v. Beacon Journal Publishing Co. (1987) 32 Ohio St.3d 176, 180-181, citing Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. The appellant concedes that Dr. Konieczny was in the best position to determine the appellant/mother's mental status. Although Dr. Konieczny did state once on cross-examination that the mother did not have any mental illness, he consistently stated that the mother had a personality disorder. He also clarified he did not observe her in order to diagnose her, but, based on what he observed, she had a personality disorder. He noted that in the past she was diagnosed as having a mixed personality. (Tr. 22). He explained that based on his observations, she has a very pervasive and enduring personality style that interferes with her -11- daily, social and occupational functioning; this personality disorder interferes with her ability to independently parent the children. For the purposes of R.C. 2151, the term mental illness is defined in R.C. 5122.01(A): `Mental Illness' means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life. See R.C. 2151.011(B)(19). The personality disorder described by Dr. Konieczny clearly is a mental illness as defined in R.C. 2151.011(B)(19), regardless of whether or not the court made a specific diagnosis which met the psychological definition of mental illness. Dr. Konieczny's findings were corroborated in substantial part by the other service providers who witnessed this personality disorder in various forms and cited it as the reason for their recommendations that the mother cannot independently parent the children. Despite several years of intense and collaborative rehabilitative efforts to develop a successful parenting instinct in Ms. Leverett, all such efforts have failed. The court considered all this evidence, along with all its observations of the mother in the courtroom, and fit the facts into one of the criteria enumerated in R.C. 2151.414(E). The court found under R.C. 2151.414(E)(2) that the mother has a chronic mental illness that is so severe that it makes the mother unable to -12- provide an adequate permanent home for the children at the present time. The deference we must show the trial court's findings and determinationwas set forth by this Court in In re Awkal, supra at 316, as follows: R.C. 2151.414(D) is written broadly and requires the juvenile court judge to consider all factors that are relevant to the best interests of the child. The purpose of a far- reaching inquiry is to allow the judge to make a fully informed decision on an issue as important as whether to terminate parental rights, privileges and responsibilities. The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. Moreover, the knowledge the juvenile court gains at the adjudicatory hearing through viewing the witnesses and observing their demeanor, gestures and voice inflections and using these observations in weighing the credibility of the proffered testimony cannot be conveyed to a reviewing court by a printed record. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410-411, N.E.2d 1273, 1276; cf. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846. Hence, this reviewing court will not overturn a permanent custody order unless the trial court has acted in a manner that is arbitrary, unreasonable or capricious. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142 (defining abuse of discretion ). The trial court's decision in the instant case was not arbitrary, unreasonable or capricious. All the professionals involved with the mother stated the mother had a significant mental deficiency or personality disorder that prevented her from -13- providing care for these children now or at any time in the future. No one could identify any other problem that the mother had that prevented her from providing proper care for the children. All efforts at rehabilitating or developing adequate parenting skills had failed. We hold that the trial court's granting of the motion for permanent custody to Family Services based on the mother's chronic mental illness was supported by clear and convincing evidence. We likewise find, based on the evidence before the Juvenile Court, that it could have also found by clear and convincing evidence that: Following the placement of the child outside the home *** the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. R.C. 2151.414(E)(1). This presents an alternative ground in support of the award of permanent custody to Family Services. Assignment of Error I is overruled. II. APPELLANT WAS DENIED DUE PROCESS OF LAW, GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WHEN THE TRIAL COURT FAILED TO CONSIDER CUSTODY OPTIONS SHORT OF PERMANENT CUSTODY WHERE THE CHILDREN WERE ULTIMATELY PLACED WITH APPELLANT'S RELATIVES. The appellant is correct in that R.C. 2151.412(G)(2) provides that a child should be placed in the legal custody of a suitable member of the child's extended family. However, the appellant erroneously argues that because the children were placed with maternal cousins, the trial court should have given them legal custody. The relatives did not want legal custody of these -14- children, but instead wanted to adopt them. (Tr. 71, 131). If they had desired legal custody, the relatives would have filed a motion for legal custody pursuant to R.C. 2151.353(A)(3). The court can not give legal custody to relatives who are not willing to accept that responsibility. It was understood by all the parties before trial that these relatives did not want legal custody of the children and the appellant did not argue for that disposition. Furthermore, it appears that the statutory language of R.C. 2151.412(G)(2) which the appellant relies upon is precatory rather than mandatory. The court in In re Hiatt (1993), 86 Ohio App.3d 716, 721, addressed this issue as follows: Appellant's specific contention is that the trial court failed to apply the mandate of R.C. 2151.412(G). R.C. 2151.412(G) sets forth rather oxymoronic mandatory guidelines for an agency's development and the court's review of case plans. See, also Kurtz & Giannelli, Ohio Juvenile Law (2 Ed.1989) 174-175, T. 13.05(E). R.C. 2151.412(G) does not appear to address permanent custody proceedings where the evidence indicates that reunification with the children's natural parents is not imminent and desirable. In In re Dixon (November 29, 1991), Lucas App. No. L-91-021, unreported, the Sixth Appellate District rejected a contention that R.C. 2151.412(G) required an award of legal custody to a relative rather than permanent custody to a public children services agency by stating: As can be seen by the statutory language cited above the section relied upon by appellant is precatory rather than mandatory. Accordingly, the section cited by appellant Dixon-Powell does not mandate the LCCSB or the court to act in any specific manner, but rather suggests some criteria to be considered in making a decision as to case plan goals. *** -15- We agree with the rationale of the Dixon court that R.C. 2151.412(G) did not require the trial court to follow the priorities listed therein in rendering its permanent custody decision. We also agree that the language in R.C. 2151.412(G) is not mandatory but merely suggestive. Therefore, the court was not bound to follow the priorities listed therein. A review of the evidence also indicates that the severing of the mother's parental rights with the children so that the relatives could eventually adopt and raise the children without interference from the mother was in the children's best interest. Without doing so, the appellant's residual rights would continue to be a platform from which she could legally challenge the children's placement. This Court in Awkal, supra found permanent custody to be appropriate based on the trial court's reasoning in the trial court's opinion. The trial court held as follows: To grant the request of Abdul Awkal in this case would ignore the thrust of a long line of well-reasoned court decisions, the weight of child psychology opinion and the legislative mandate of the statutes by S.B. 89, effective January 1, 1989, that: 1) Abused, neglected and dependent children are entitled to stable, secure, nurturing and permanent homes in the near term; 2) Abused, neglected and dependent children need not be required to languish in legally insecure placements for two, three, four or more years while natural parents are either unwilling or unable to correct serious parenting deficiencies; and 3) The best interest of the child is the pivotal factor in permanency cases. -16- S.B. was the Emancipation Proclomation (sic) for Ohio's abused, neglected and dependent children. No longer were these innocents to be considered mere legal appendages of their parents. (Id. at 317). Dr. Konieczny testified that he would have concerns if the mother were to retain certain parental rights. (Tr. 41). He was able to see firsthand how disruptive the mother was to the children and how her disruptions impacted negatively on the children. He also said he could foresee the mother would not be able to abide by any recommendations regarding the children's care and that severing her ties with the children was the only way to prevent this. Adoption would be the only way that the children could be raised in a stable, safe environment. Adoption is clearly in their best interest. For the court to deny the motion for permanent custody simply because the children are placed with relatives, relatives who do not want legal custody, would keep the children in foster care indefinitely. This would encourage the concept known as foster care drift and this is the exact situation the statutory scheme is trying to avoid for children. In re Onosun (1995), 106 Ohio App.3d 813, 819; In re Collier (1993), 85 Ohio App.3d 232, 235. The court properly found that there were no available relatives to accept legal custody of the children and the award of permanent custody to Family Services so that relatives could adopt the children was proper. Assignment of Error II is overruled. -17- Judgment affirmed. -18- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for these appeals. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., CONCURS. ROCCO, J., CONCURS WITH SEPARATE CONCURRING OPINION. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71357/71358/71359/71360 IN THE MATTER OF: : DANIELLE LEVERETT [71357]: DEBRA LEVERETT [71358] : CONCURRING BRYANT LEE [71359] : BRADFORD LEE [71360] : OPINION : Appellees : KENNETH A. ROCCO, J. CONCURRING: I concur in the judgment of the court affirming the juvenile court's award of permanent custody of appellant's four children to appellee Cuyahoga County Department of Children and Family Services ("Family Services"). I concur with the majority's well-stated view overruling appellant's second assignment of error. Although I concur in the judgment that appellant's first assignment of error is properly overruled, I would not find that the record establishes that the appellant/mother has a chronic mental illness by clear and convincing evidence. Nevertheless, the juvenile court's deter- mination was valid under one or more of the factors listed in R.C. 2151.414(E) and must be affirmed. Regardless of whether this court agrees with the juvenile court's finding of chronic mental illness, the court's decision to award permanent custody to appellee Family Services can be grounded in R.C. 2151.414(E). Based on the evidence before the juvenile court, it could have found by clear and convincing evidence that: Following the placement of the child outside the home *** the parent has failed continu- ously and repeatedly to substantially remedy -2- the conditions causing the child to be placed outside the child's home. R.C. 2151.414(E)(1). Family Services' initial neglect investiga- tion confirmed that appellant's house and children were dirty and unsupervised, and appellant was therefore enrolled in a parenting program. Appellant was deprived of the custody of her children because of her inadequate parental supervision. Testimony at the hearing clearly and convincingly established that appellant failed continuously and repeatedly, despite her sincere efforts, to substantiallyremedy the conditions that caused her children to be placed outside their home. The Affidavit supporting the Motion to Modify Temporary Custody to Permanent Custody did not allege that the mother had a chronic mental illness; rather, the Affidavit was grounded in R.C. 2151.414(E)(1-8), generally, and alleged that the Mother has not sufficiently comprehendedparenting skills to warrant reunification with her children and that the Mother has not addressed the initial concerns and conditions which brought about the children's removal from the home. I would find that the juvenile court's determination was valid under R.C. 2151.414(E)(1). The Supreme Court of the United States has recognized that a parent's right to raise a child is an essential and basic civil right. Stanley v. Illinois (1972), 405 U.S. 645, 651. See, also, In re Hays (1997), 79 Ohio St.3d 46, 48. The Supreme Court of Ohio has stated that a parent's right to the custody of her child is paramount. Hays, 79 Ohio St.3d at 48. -3- The State of Ohio recognizes the fundamental importance of parental rights but has attempted to balance the safeguarding of parental rights with the best interests of the child. See, e.g., R.C. 2151.01(C). A juvenile court may determine that a child should not be placed with a parent if the court determines, by clear and convincing evidence, that there exists, inter alia: *** [c]hronic mental illness *** of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year [after the hear- ing]. R.C. 2151.414(E)(2). Mental illness, as used in R.C. 2151, has the same meaning as in R.C. 5122.01. R.C. 2151.011(A)(19). Mental illness is de- fined as a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life. R.C. 5122.01(A). The proper test for a determination of mental illness under the statute is the meaning that the words convey to the ordinarily prudent person of reason- able understanding and intelligence. In re McKinney (1983), 8 Ohio App.3d 278, 280. The court in McKinney stated that: *** [i]f there be a substantial disorder of thought, mood, or description that grossly impairs judgment, behavior, or ability to meet the ordinary demands of life, the condition is a mental illness under the statute, irrespec- tive as to whether it is considered an illness by psychiatric experts. McKinney, supra, at 281. -4- The U.S. Supreme Court has held that before a state may completely sever parental rights, due process requires that the State support its allegations by at least clear and convincing evidence. Santosky v. Kramer (1982), 455 U.S. 745, 748. This state does require that the evidence establishing that a parent has a chronic mental illness must be clear and convincing. R.C. 2151.414(E)(2). The Supreme Court of Ohio has stated that [w]here the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. In re Mental Illness of Thomas (1996), 108 Ohio App.3d 697, 700 (quoting State v. Schiebel [1990], 55 Ohio St.3d 71, 74). This court must therefore examine the record before it to determine whether the trier of facts had sufficient evidence before it to award permanent custody to appellee Family Services. The juvenile court determined that appellant/mother was unable to provide an adequate permanent home for the children in the foreseeable future due to the parent's chronic mental illness. (Journal Entry, Sept. 20, 1996.) The evidence in the record of appellant's chronic mental illness is less than clear and convincing. John Koniesczny, Ph.D., a psychological consultant, testified at the hearing that appellant was somewhat limited in her intellectual functioning. T. at 9. He further testified that her intellectual limitations are not of such magnitude as to prevent her from learning and implementing parenting techniques. T. at 23, 47. Dr. Koniesczny -5- specifically testified that appellant did not have any mental defect or mental illness that would interfere with her parenting. T. at 22, 46. A standard psychological tool, the MMPI, adminis- tered by the psychologist, gave no indication of mental illness or mental defect. T. at 21. McKinney teaches that mental illness, under the statute, has the meaning that the words convey to the ordinarily prudent person of reasonable understanding and intelligence. McKinney, 8 Ohio App.3d at 280. Mental illness is defined as a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life. R.C. 5122.01(A). Whether appellant's judgment or behavior reaches this level is open to doubt. It certainly was not established by clear and con- vincing evidence. Dr. Koniesczny testified that although appellant approached the margins of a personality disorder, not otherwise specified, she did not have such a disorder. T. at 46. A. *** Upon reflection and review of all the materials, although she comes very close to what I would call to a diagnosis of what's called personality disorder, not otherwise specified. And what that means is she has a very pervasive and enduring personality style that interferes with her daily functioning or social or occu- pational functioning, but that it's not specific to any of the other personality disorders *** She doesn't show any behaviors or criteria that would warrant those kind of diagnoses, so the kind of catchall miscellaneous diagnosis, if appropriate, would be a what's called a personality disorder, not otherwise spec- ified *** -6- Q. So it may be very similar to what you have? A. Again, my opinion currently is that she does not suffer from a full personality disorder not otherwise specified. Per- haps an argument could be made, again, given her cognitive style and personality style that you could call it sort of a lesser version of factors or traits of a personality disorder, but not a full- blown one. I don't think there are sig- nificant other behaviors there. Q. Because you did testify that she does not have any mental illness that would inter- fere with her ability to parent. A. Correct. T. at 45-46 (emphasis added). No other witness testified to appellant's mental condition. Nonetheless, it was Dr. Koniesczny's opinion that appellant is not capable of independently and adequately parenting the children. T. at 20, 55. Indeed, the majority of the testimony at the hearing focused on the first aspect of the case plan: the necessity of appellant's learning appropriate parenting skills and her inability to do so. All witnesses testified that appellant loves and cares about her children. T. at 9, 11, 97, 130. It is also undisputed that all four children are difficult children with special needs. T. at 63, 100. The girls are both severely behaviorally handicapped, and Danielle is developmentally handicapped as well. T. at 62, 128. They are difficult to discipline and difficult to communicate with. T. at 63. The boys have some behavioral problems but not as severe as the girls'. T. at 129. The boys have language delays -7- and behavior problems; they are not well socialized yet. T. at 95- 96, 108-109. The boys have developmental delays as well. T. at 108-109. The parenting instructor, Ms. Strickland, testified that appellant has been in her parenting program for about one and one- half years. T. at 92. The Family Services supervisor, Ms. Ristow, noted that this is the third parenting program in which appellant has been enrolled. T. at 118. While the typical time for completion of this program is eight or nine months, appellant had been involved in this (her third) parenting program for one and one-half years and is not even half done. T. at 100. Ms. Strickland testified that although appellant is continuing to make progress, it has been a challenge to get her to meet the goals consistently. T. at 97. Basically, Ms. Strickland shared Dr. Koniesczny's concern about appellant's ability to parent the children on her own, independently. T. at 98, 100. Ms. Ristow testified that Family Services' decision to seek permanent custody was difficult because of appellant's love for her children and her cooperation and involvement in the case plan. T. at 130. However, Ms. Ristow testified that she believed that appellant could not manage even one of the children. T. at 138. Ms. Bingham, the family therapist, testified that both girls are opposed to living with their mother. T. at 67, 77. Ms. Ristow testified that Danielle has always expressed a strong desire not to want to visit her mother, while Debra is more ambivalent. T. -8- at 130. Ms. Strickland testified, however, that the (younger) boys are very attached to their mother. T. at 102. An appellate court may decide an issue on grounds different from those determined by a trial court provided that the eviden- tiary basis for the appellate court's determination was made part of the record below. State v. Peagler (1996), 76 Ohio St.3d 496 (syllabus). Appellee's motion for permanent custody was filed pursuant to R.C. 2151.414(E)(1)-(8). Although the juvenile court's disposition of the motion was based on R.C. 2151.414(E)(2) ( chronic mental illness ), the Ohio Revised Code states that a custody finding can be based on any one or more of the following factors listed in (1)-(8). R.C. 2151.414(E). The statute mandates that the juvenile court determine what is in the best interest of the child. R.C. 2151.414(B)(1). Recalling that the legislative intent behind R.C. 2151.414 was to provide *** that each child receives proper parental care or guardianship and that it was designed to provide for social intervention into the biological family when the child's needs and welfare demand it, the juvenile court could have found sufficient evidence to grant permanent custody to appellee. In re Lay (1987), 43 Ohio App.3d 78, 79. The juvenile court's determination was valid under one or more .